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VAT and Sales Tax - Case Laws
Showing 21 to 40 of 94 Records
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2017 (3) TMI 1491
Input tax Credit - duty paying documents - Works contract - whether the awarder of the contract, namely, Karnataka Water Supply Board is ‘Government’, and therefore, the Running Bills prepared by the Board can be construed as “Tax Invoices” within the meaning of Rule 27(2) Proviso of Karnataka Value Added Tax Rules, 2005?
Held that: - The purpose of the Proviso to Rule 27(2) of the KVAT Rules giving the status of “Tax Invoices or Bill of Sale” even to the “Running Account Bills” to the awarders of the work contract to be executed by contractors by the Government or its departments is obviously to allow such contractors to take input tax credit on the basis of such tax invoices. Since running bills are prepared during the currency of the execution of contract itself since the final bill is not made at that point of time.
There is no reason to hold that the Karnataka Water Board, in question, is not a Department of the Government or so as to fall outside the ambit and scope of the said Proviso to Rule 27(2) of the KVAT Rules - revision dismissed - decided against Revenue
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2017 (3) TMI 1490
Refund claim - unjust enrichment - on the aspect of applicability of Section-47 of the KVAT Act and its consequential effect, the matter has been remanded by the Tribunal to the Jurisdictional Local VAT Officer - Held that: - since the matter is at large to be examined by the Jurisdictional Local Vat Officer in accordance with law, the petition may be permitted to be withdrawn - all the rights and contentions of both parties including the question of applicability of Section-47 of KVAT Act shall remain open to be considered by the Jurisdictional Local VAT Officer - petition quashed.
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2017 (3) TMI 1489
Validity of assessment order - natural justice - no Notice of hearing has ever been given and ex-parte order has been passed - Held that: - Notice has been served upon the guarantors of the petitioners. Such type of service of Notice is no Notice in the eye of law, especially when tax liability is to be imposed upon the petitioners. The minimum requirement is that Notice of hearing should be served upon the Assessee before passing such order against the assessee - This minimum requirement has not been fulfilled in this case as a result of which work load of this court has unnecessarily been increased and therefore, such type of matters should be remanded - appeal allowed by way of remand.
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2017 (3) TMI 1488
Input tax credit - denial on the ground that the invoices could not be produced - the tax invoices were lost. The appellant failed before the First Appellate Authority and the Tribunal as he could not get duplicate copy of tax invoices and statutory VAT-C-4 by that time. Subsequently the appellant obtained duplicate copy from the Selling Dealer and also VAT-C-4 in original - Held that: - the appellant has produced the duplicate tax invoices and the statutory form VAT-C-4, along with the present appeal, in our view the appeal deserves to be accepted. The impugned orders passed by the Authorities are set aside. The matter is remitted back to the Assessing Authority for fresh determination of tax liability of the appellant after the appellant furnishes duplicate tax invoices and original statutory form VAT-C-4 - benefit of input tax credit allowed - appeal allowed by way of remand.
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2017 (3) TMI 1487
Compounding of offences - KVAT Act - For compounding an offence, which of the compounding fees should be paid by the assessee: the one prevailing when the evasion took place or the one prevailing at the time of actual compounding?
Held that: - If it is a continuing offence, the penalty applicable at the terminus is the penalty the erring assessee shall be mulcted with - If it is non-recurring (for want of a better expression), the liability stipulated when the offence has been committed alone shall apply. We shall, in a while, examine whether either of these contingencies applies to the case on hand.
Compounding is in relation to an offence; what was imposed, however, is fee. No quarrel can we have with the proposition that imposing fee is a taxing aspect of the State under Article 265 of the Constitution of India. Equally indisputable is that fee can be levied even retrospectively as it falls beyond the mischief of Article 20(1) of the Constitution, which concerns punitive sanctions: punishment and penalty, neither of which is fee. Viewed alternatively, we may, before parting with the matter, observe that the appellant has not made out any positive case that the nomenclature notwithstanding, what is being collected is penalty rather than fee.
The compounding fee as prevailing at the time of the assessee’s deciding to pay it shall alone apply - appeal dismissed - decided against appellant.
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2017 (3) TMI 1486
Interest on delayed payment - Revenue's case is that once it is established that the amount of tax as was due in terms of the provisions of the Act and the notification issued thereunder had not been paid along with the returns, there is nothing wrong in raising the demand of interest for its delayed payment - Held that: - an assessee cannot foresee the additional demand of tax on account of reassessment or in revision and the interest would become payable only from the date, the demand is raised and not from the date of filing of return - demand of interest set aside - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 1427
Pre-deposit - invocation of revisional power u/s 74A of the DVAT Act, 2004 - petitioner's case is that that such powers could not have been invoked in the peculiar circumstances of the case (with respect to past transactions) which had resulted in finalised assessments prior to enactment of the Act in force - Held that: - the petitioners are hereby allowed the relief in the sense that they are at liberty to deposit 25% of the demanded amount as a condition for pre-deposit - petition disposed off - decided partly in favor of petitioner.
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2017 (3) TMI 1426
Validity of assessment order - the case of the petitioner is that the payments made by the petitioner had not been adjusted by the respondent, while passing the impugned assessment order - natural justice - Held that: - the respondent is directed to dispose of the representation dated 25.10.2016, after affording an opportunity of personal hearing to the petitioner. The petitioner will be at liberty to file documents, if any, before the respondent, on which, he seeks to place reliance - the respondent will pass a speaking order; a copy of which will be served on the petitioner - appeal allowed by way of remand.
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2017 (3) TMI 1425
Validity of assessment order - it is the petitioner's case that the respondent has proceeded to pass the said order on account of the variation in the information - Held that: - there is an contradiction in the impugned order. On the one hand, the respondent says that all monthly returns for the year 2014-2015 were filed by the petitioner and on the other hand, he holds that no monthly returns were filed. Furthermore, the respondent, proceeds to impose tax and penalty based on mismatch in information. This Court, has repeatedly, held that mismatch in information cannot be the sole basis for imposing tax and penalty. In case, respondent was desirous of confirming the proposal, he should have in the very least supplied the material particulars to the petitioner - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 1424
Detention of goods with vehicle - detention is for the purpose to verify whether the petitioner had discharged tax liability for the prior period - subsequently order of attachment was passed - is detention justified? - Held that: - None of the grounds on which an officer-in-charge of a check-post can seize the goods and detain the vehicle include verification of payment of past taxes. It is true that u/s 45(1) of the VAT Act, the competent authority has the power to provisionally attach the goods of a dealer pending any proceedings for assessment or reassessment if he is of the opinion that for the purpose of protecting the interest of the Revenue, it is necessary to do so. However, the powers u/s 68(4) of the Act and of provisional attachment u/s 45(1) of the Act are vastly different in nature - also, the department has already attached other goods worth ₹ 1.60 crores, lying in the petitioner's godown. Additional attachment of the consignment of the goods in question therefore would not be necessary.
Goods directed to be released - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 1423
Penalty - whether the appellate authority is entitled to enhance the penalty in an appeal filed by the assessee u/s 14 of the Punjab Excise Act, 1914? - Held that: - Section 14 does not confer a power upon the appellate authority to pass an order more burdensome than the order appealed against. It does not entitle the appellate authority to enhance the penalty - Where the Legislature intends conferring a power upon an appellate or revisional authority to enhance the relief in favour of the respondent, it does so specifically - The impugned order enhancing the penalty was, therefore, without jurisdiction - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 1396
Prosecution - tampering with statutory documents - Held that: - it is evidently clear that the vehicles, which transported the goods from the State of Kerala, did not carry the goods, when going out of the State. That apart, vehicle numbers in Form-IV issued by the Rubber Board have been tampered. Further, the time schedule fixed in the transit passes have not been adhered to and the goods did not pass through the designated check posts as mentioned in the transit passes - petition dismissed - decided against petitioner.
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2017 (3) TMI 1395
Jurisdiction - Whether the penalizing officer u/s 51(7)(b) of the Act has the jurisdiction to determine the issues on which the matter was remanded by the Tribunal? - penalty - Held that: - issue is regarding determination of nature of transactions. The proceedings u/s 51 of the VAT Act are summary in nature. The officer at the check post can not determine the nature of transaction, that being the job of the regular assessing authority. Accordingly, the proceedings initiated for levy penalty u/s 51 of the VAT Act are quashed - appeal allowed - decided in favor of assessee.
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2017 (3) TMI 1394
Security for registration as a transporter - Tripura VAT - the petitioner-firm applied for registration under the category of couriers and hence, as stated, the petitioner-firm was liable to pay the security deposit to the extent of ₹ 3.60 lacs. Though the application was made on 22.04.2014, the respondents, the respondent No.2 in particular, did not take any decision on the application filed by the petitioner firm for registration till 22.04.2015 when approval for registration was accorded - whether the Memorandum dated 20.07.2015 would apply in the case of the petitioner for purpose of raising additional security deposit or whether such exercise would imply the retrospective operation of the said memorandum dated 20.07.2015?
Held that: - In the records as produced by the respondents or in the counter-affidavit no explanation has been given as to why the application for registration which was filed on 24.04.2014 was kept pending till 22.04.2015 when the petitioner-firm was asked to deposit the security for registration. When after inquiry, the petitioner-firm was found competent to have the registration certificate as the transporter (courier), though belatedly on 22.04.2015, the demand for security deposit was made and as such the relevant date for purpose of determining the rate of security deposit shall invariably be 22.04.2015, not 31.07.2015. By way of applying the new rate in the case of the petitioner-firm, we have no doubt in our mind that the respondents have given retrospective effect of the memorandum dated 20.07.2015, which according to us, in the context of this case, cannot be sustained. Hence, the impugned decision/order as reflected in the communication dated 16.10.2015 is interfered with and set aside - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 1343
Benefit of Sales-tax exemption or Sales-tax Deferment Eligibility Fixed Capital Investment - Section 49 [2] of the Gujarat Sales Tax Act, 1969 - extension of the period of Sales Tax Eligibility Certificate for a further period of five years for un-utilized amount of ₹ 57.82 Crores out of ₹ 188.15 Crores, and to consider the expenses of ₹ 257.55 Crores which were incurred and paid upto 12th April 2007 instead of ₹ 213.58 Crores, being the period of eighteen months from the date of commencement of commercial production ie., 12th October 2005 - whether the petitioner-Company is entitled to incentive/ sales tax exemption under the Scheme on investment/expenditure incurred after 31st December 2005, but within a period of 18 months from the date of commencement of commercial production?
Held that: - it is required to be noted that in case of Small Scale Industrial Units, Medium and Large scale Industrial Units, the assets acquired upto the period of six months or within 1 year from the date of commencement of commercial production or till the date of completion of the said Scheme ie., 31st December 2005; whichever is earlier between the two, shall be considered eligible for the purpose of Incentives. However, in the Gujarati version of the Incentive Scheme, the expression “whichever is earlier between the two” is missing in case of Industrial Units having project cost exceeding ₹ 10 Crores. The aforesaid seems to be an inadvertent mistake in publication/typing - Nobody can be permitted to take undue advantage/ disadvantage of the beneficial Scheme due to inadvertent mistake in publication.
In case of Industrial Units having project cost exceeding ₹ 10 Crores, it is mentioned that the assets acquired within a period of 18 months form the date of commencement of production, or till the completion of the said Scheme, shall be considered eligible for the purpose of incentives. Therefore, the submissions made on behalf of the petitioners that the assets acquired upto 11th April 2007 are required to be considered eligible for the purpose of incentive; if is accepted, in that case, the words/expressions “till the completion of the said Scheme” shall be meaningless.
When the petitioners and all other Industrial Units/ Undertakings/Projects [105 in number] understood the Scheme, the manner in which the State Government had pleaded and all are treated equally and in case of all Industrial Undertakings/Projects, the assets acquired only upto 31st December 2005 are considered eligible for the purpose of incentive, the petitioners are not entitled to incentive on the assets acquired subsequently after commencement of commercial production or after 31st December 2005.
The present writ petition with respect to claim of the petitioners for incentive/sales tax exemption on the investment made/assets acquired after 31.12.2005, but made on or before 11.04.2007 ie., within a period of 18 months from the date of commencement of commercial production ie., ₹ 257.55 Crores is hereby rejected. It is held that the petitioners are not entitled to the incentive/sales tax exemption on the total expenses/investment of ₹ 257.55 crores as claimed and are entitled for incentive/sales tax exemption on the investment made/assets acquired upto the date of commencement of commercial production ie., 12th October 2005.
Petition dismissed - decided against petitioner.
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2017 (3) TMI 1342
Imposition of condition of stay - Held that: - This Court in M/s.Mangalam Foundation's case [2017 (3) TMI 1296 - MADRAS HIGH COURT] has given an option to the assessees' to furnish a personal bond, where 50% of the disputed tax has been paid - the impugned order is modified to the extent that instead of furnishing a Bank Guarantee, the petitioner would place on record a personal bond for the balance amount of disputed tax and penalty, within two (2) weeks from the date of receipt of a copy of the order - petition allowed - decided partly in favor of petitioner.
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2017 (3) TMI 1296
Waiver of pre-deposit - bank guarantee to be made for the purpose of consideration of the appeal - Counsel for the petitioner says that uptill now 50% of the disputed tax has already been paid. The counsel further says that the petitioner is willing to furnish a personal bond for the balance disputed tax and penalty as against a bank guarantee sought for by the respondents - Held that: - the impugned order is modified to the extent that instead of a bank guarantee, the petitioner would furnish a personal bond for the balance amount of disputed tax and the entire penalty amount, within two (2) weeks from the date of receipt of a copy of the order. Upon such personal bond being furnished, there shall be a stay qua the Order-in-Original dated 30.05.2016, pending consideration of the appeal preferred before the first respondent - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 1274
Maintainability of petition - Article 226 of the Constitution of India - alternate remedy of preferring appeal - Held that: - if the appeal is resorted to, any observation in the impugned order by the Single Judge on the merits of the matter may influence the Appellate Authority to decide the appeal in accordance with law. Therefore observations made by the learned Single Judge insofar as merits of the case is concerned, the same should not operate in the way of appellant in pursuing the appeal. Suffice it to say that contentions of both parties are to be considered by the Appellate Authority independently and in accordance with law - if appeal is preferred and the direction is given to the Appellate Authority to decide the appeal within reasonable time, the same would meet the ends of justice, more particularly, when on behalf of the respondents it was declared for no objection to decide the appeal within particular time limit - appeal allowed - decided partly in favor of appellant.
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2017 (3) TMI 1273
Validity of assessment order - natural justice - Assessing Officer relied on the Web Report and passed the impugned order without furnishing all the details and conducting thorough enquiry with the dealers - Held that: - this Court, in the batch of cases, has dealt with the matter in respect of the assessments made based on Web Report and found that the centralised mechanism has to be evolved for passing such order of assessment - as regards the contention raised by the petitioner that the assessee was not given personal hearing before imposing penalty u/s 22(4) of TNVAT Act is concerned, a perusal of the order of assessment does not indicate that the petitioner was given any opportunity of personal hearing before passing the same - matter needs to be remitted back to the Assessing Authority for re-doing the exercise after following the procedures/directions stipulated in the order - petition allowed - appeal allowed by way of remand.
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2017 (3) TMI 1191
Minor - recovery of sales tax dues - Section 65 of the Revenue Recovery Act - it is the case of petitioner that in the Government Order dated 02/08/2003, there was a clear finding that the partnership was reconstituted by excluding the petitioner while he was a minor and the petitioner has ceased to be a beneficiary of the partnership firm. The period of assessment of sales tax arrears in question is later to the cessation of the petitioner as a beneficiary of the partnership firm - Held that: - the petitioner was already removed from the benefits of the partnership w.e.f. 01/01/1976 - Unless it is found on evidence, that the petitioner had become a partner of the firm subsequent to 01/01/1976, there cannot be any liability mulcted on the petitioner, as a partner. Yet another eventuality is whether the petitioner had succeeded to the estate of any deceased partner, who is jointly and severally liable to pay the amount. In such an event, there would not be any personal liability, whereas the liability will only be to the extent of properties succeeded from the deceased partner - petition allowed - decided in favor of petitioner.
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